Deal ensures 20,000 taken off rolls can to vote

By Todd Hartman, Rocky Mountain News

Published October 30, 2008 at 12:05 a.m.

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Voting-rights activists cut a deal with Colorado's secretary of state late Wednesday that will ensure some 20,000 voters removed from state rolls will get to cast a ballot.

The deal, reached after nearly six hours of testimony and more than two hours of closed-door talks in a federal courtroom in Denver, requires Secretary of State Mike Coffman to produce a complete list of voters taken off state rolls since May 14 and provide it to all county clerks by Election Day.

Those voters will be allowed to cast a provisional ballot. Their votes will then get priority in the post-election count of provisional ballots and be presumed to be valid unless state and county officials prove otherwise.

Provisional ballots typically are cast when a voter doesn't appear on voter rolls, or there is confusion over eligibility. Election officials later determine whether the ballot can be legally accepted.

"I think it's a win-win," said Jim Finberg, a San Francisco-based lawyer representing activist groups Common Cause, Mia Familia Vota Education Fund and the Service Employees International Union. "It's an effort to put the people deleted from the rolls in the position they would have been in under the protections of federal (voting rights) law."

The parties worked hours past closing time, until around 9 p.m., to resolve the matter, an unusual pace for federal court cases but evidence of the urgency to clear up the issue with Election Day fast approaching. Federal Judge John L. Kane praised the work of both sides.

"I think this is a much more sensible way of handling this then letting some grizzled old judge" decide it, he said.

The trio of activist groups had sued Coffman for what they argue was an illegal "purging" in recent months of some 14,000 voters in a fashion that violates federal election laws.

The agreement - at least for now - tamps down a controversy that erupted this month when The New York Times reported that Colorado, along with several other states, appeared to have illegally taken tens of thousands of voters off the rolls within 90 days of a general election.

Coffman, a Republican, contended he followed the law in directing the removal of registrations for people who died, moved, were convicted of a felony or were signed up to vote more than once.

His staff appeared satisfied with the compromise: "We've crafted a process to ensure no voter's right to vote is wrongfully denied," said William Hobbs, deputy secretary of state.

The settlement came after Kane - prior to closing arguments - alerted lawyers that testimony from two state officials gave him concerns. They argued that putting the canceled voters back into the rolls could create confusion for county clerks and disrupt an election already under strain from tidal waves of mail balloting and early voting and predictions of record turnout.

But Kane didn't let Coffman's office off the hook entirely.

"I think there are places where the state went out of bounds on removal of these names," he told the parties before they settled the matter.

hartmant@RockyMountainNews.com or 303-954-5048

About 1,400 Denver residents whose voter status is in limbo because they didn't check a box on their application will be able to cast a regular ballot on Election Day.

Denver Clerk and Recorder Stephanie O'Malley, a Democrat, announced Wednesday she will permit these people to fix their voter forms at the polls on Nov. 4 and then vote.

She said her interpretation of state regulations allows the check box problem to be fixed on Election Day. But Secretary of State Mike Coffman has disagreed, saying under state law people who don't check the box can cast only a provisional ballot at the polls. Provisional ballots require additional paperwork and are added to the count after Election Day.

"Denver was irresponsible by not clearing this through my office first to make sure that it complied with both state and federal laws," said a statement from Coffman, a Republican. "I'll forward their proposal to the attorney general's office immediately to see whether it complies or not. I absolutely agree that this law needs to be reformed, but until then, all election officials have to comply."

The state voter application asks for a driver's license number or state ID. If people don't have either they're supposed to check a box and then supply at least the last four digits of their Social Security number. If the box isn't checked, the form isn't accepted, according to Coffman's rule, which has been supported by the attorney general's office.

Election workers in Jefferson and Larimer counties have been accepting forms without the box checked but requiring ID at the polls. Almost 4,800 people statewide are affected by this issue.

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